Public Interest Vs.Private Lives

PUBLIC INTEREST VS. PRIVATE LIVES—AFFORDING PUBLIC FIGURES PRIVACY IN THE DIGITAL ERA: THE THREE PRINCIPLE FILTERING MODEL Shlomit Yanisky-Ravid* Ben Zion Lahav** “Any society that would give up a little liberty to gain a little security will deserve neither and lose both.”1 TABLE OF CONTENTS INTRODUCTION ................................................................................ 976 I. PRIVACY OF PUBLIC FIGURES IN THE DIGITAL ERA ................... 978 II. A PUBLIC FIGURE – WHO ARE YOU? ......................................... 980 A. Can Anyone Be a Public Figure? .................................................... 980 * Dr. Shlomit Yanisky-Ravid, Intellectual Property and Cyber Professor of Law, Professor Fellow, Information Society Project (“ISP”), Yale Law School; Visiting Professor, Fordham University School of Law (2012, 2014, 2017); Senior Faculty, Ono Academic Law School, Israel (“OAC”); Founder and Director, The Shalom Comparative Legal Research Center, OAC, Israel, Switzer- land & U.S.A. ** Dr. Ben Zion Lahav, Constitutional Professor of Law, Ono Academic Law School, Israel. The co-authors, equally contributing to the work, cherish the wonderful cooperation in preparing the article and the collegial friendship. We would like to thank Jack Balkin, Joel Reidenberg, Christine Jolls, Valerie Belair-Gagnon, Bonnie Kaplan, Christina Spiesel, Amichai Cohen, and Sivan Saban-Hacohen for their encouragement, insights and important contributions along the way. Special thanks to several institutes, who gave a stage for the discussionsleading to this pa- per, such as Yale Law School; ISP; Fordham University School of Law; the World Intellectual Property Organization, Geneva; and to the OAC. We are also grateful to the Swiss Institute of Comparative Law, Lausanne for supporting the research, especially to their professional staff: Al- berto Aharonovitz, Lukas Heckendorn Urscheler, Karen Topaz Druckman, John Curran, Sadri Saieb and Christiane Serkis. To the research assistants and gifted editors, Laura Lagone and Elizabeth Ledkovsky, Esq., gratitude for your wonderful assistance. Any errors are our own. 1 This quotation, commonly attributed to Benjamin Franklin, derives from words he wrote for the Pennsylvania Assembly in its Reply to the Governor, dated Nov. 11, 1755: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safe- ty.” Pennsylvania Assembly: Reply to the Governor, in Votes and Proceedings of the House of Represent- atives, 1755–1756 (Philadelphia, 1756), FOUNDERS ONLINE 19–21, https://founders.archives.gov/documents/Franklin/01-06-02-0107 975 976 JOURNAL OF CONSTITUTIONAL LAW [Vol. 19:4 B. What Information Should Stay Private for Public Figures? ................ 986 III. THE LAW OF PRIVACY FOR PUBLIC FIGURES .......................... 987 A. The U.S. Attitude Toward Privacy—The Constitutional Roots ......... 987 1. The U.S Constitutional Origin—First Amendment Freedom Of Expression .......................................................................... 987 2. Diverse Attitudes and Different Sources of Privacy ..................... 989 B. The Loss Of Privacy for Public Figures in the U.S. .......................... 993 1. Public Figures Have (Almost) No Privacy Rights in the U.S.: The History Of Supreme Court Decisions Establishing the Superiority Rule of Freedom of Expression ............................. 993 2. Rethinking Supreme Court Privacy Subordinate Standpoint ........ 997 IV. A FILTERING MODEL: THE PUBLIC INTEREST TO KNOW VS. PRIVACY PROTECTION ....................................................... 999 A. Public Figures and the Balloon of Privacy ........................................ 999 B. The Three Principle Filtering Model ............................................ 1000 1. The Relevancy of Private Information .................................... 1001 2. Access to Necessary Information for Learning Important Knowledge about Our World and Being Part of Society ......... 1002 3. The Proportionality Rule ...................................................... 1006 V. FROM THEORY TO PRACTICE—APPLYING THE PROPOSED THREE PRINCIPLE FILTERING MODEL ................................... 1008 CONCLUSION .................................................................................. 1012 INTRODUCTION In the United States, because of the widely accepted belief in the “right to know” information of public concern, freedom of speech generally over- rides public figures’ right to privacy. As a result, public figures have almost no right to privacy, even when the published information is false. The digital era brings new threats to public figures’ privacy and invokes the need to rethink this norm. We agree with the notion that public figures, by virtue of their position in society, waive a substantial part of their right to privacy when there is an important and legitimate purpose behind informing the public of certain information. However, we depart from the United States’ legal norm by maintaining that, unders certain conditions, public figures should be able to enjoy a right to privacy similar to that afforded to private citizens. In support of this proposition, we have developed a Three Princi- ple Filtering Model, to be used in determining whether or not the rationale May 2017] PUBLIC INTEREST VS. PRIVATE LIVES 977 for publishing information about public figures is legitimate and hence should be allowed or prohibited. The Three Principle Model requires an analysis of (1) the relevancy of the private information to the public and (2) whether access to the information is necessary for imparting knowledge, and then the application of (3) a proportionality rule. We argue that the current legal norm in the U.S. is excessively permissive, allowing virtually any publication about public figures and too often resulting in the exposure of private information to an extent that is neither reasonable nor legitimate. Our model, while accepting the public right to know (unlike other models), better balances this right against competing values. It also sheds light on the debate surrounding the privacy of public figures from different angles than those examined by the U.S. Supreme Court. The Supreme Court’s rulings on public figures were shaped by defamation cases and sound main- ly in First Amendment issues, emphasizing freedom of expression and freedom of the press. This perspective sets the public and the press as protago- nists, whereas our model, focusing on the issue of privacy, locates individuals at the center of the discourse. Moreover, the prevailing privacy norm is based on liberal conceptions, whereas our approach is more grounded in personality theories that enable a “balloon” of privacy, even within public domains, including cyberspace. The Supreme Court did not account for the digital era when shaping its tests. Our model is not based on any specific jurisdiction and can be implemented worldwide. We argue that when the public’s only interest is to invade privacy for the sake of curiosity (snooping, gossip or perverted behavior), where the information does not carry any valuable influence over the person looking for the information—publication of private information about public figures will not be justified. Further, the joy people obtain from invading someone else’s private and intimate life does not justify the harm to that person’s privacy, and allowing this kind of invasion contradicts the fundamental values of freedom, autonomy, and dignity. Our proposed model may help policy makers in the process of filtering between justified and unjustified publications of private information about public figures, while preserving space in their balloon of privacy. Part I addresses the problem that the digital era brings into the discussion of public figure privacy. Part II defines public figures and analyzes the varying definitions of private information as it pertains to this article’s discussion. Part III offers a background on the right to privacy and its origins in the U.S. legal system. In particular, it describes U.S. privacy law in the context of the First and Fourth Amendments of the U.S. Constitution. This discussion includes a contrast with the European approach, which differs by focusing on personal dignity and, hence, personal control over one’s public image. Part IV presents the new Three Principle Filtering Model for determining what information about public figures should be protected. Fi- 978 JOURNAL OF CONSTITUTIONAL LAW [Vol. 19:4 nally, Part V discusses the legal tools needed to implement the proposed Three Principle Filtering Model. I. PRIVACY OF PUBLIC FIGURES IN THE DIGITAL ERA When movie star Jennifer Lawrence, who rose to fame for her portrayal of the heroine in the popular Hunger Games films, uploaded photos to her iCloud account, she never paused to consider that they could be considered fair game by a relentless media eager to capitalize on her fame. But in Sep- tember, 2014, hackers targeted her account and, to their delight, found, and were able to download and republish, the actress’s private photo- graphs, including, to Ms. Lawrence’s utter dismay, a number of private nude photos.2 The incident sparked controversy, drawing attention not only to the vulnerabilities of Apple’s virtual data storage service and the Inter- net in general,3 but also to the old debate as to whether or not people whose fortunes are based on their fame and public image have any right to keep any part of their lives private.4

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